The Beginning of the End of “Net Neutrality”

There’s an old saying that you never know how deep a puddle is until you step in it. Well, the lobbying groups favoring “net neutrality” regulations stepped in a puddle last week, and they’re going to have trouble coming up for air. The “puddle” was deciding to include the “retransmission consent” battle going on between Cablevision and Fox in the “net neutrality” rhetoric. The classic “just hold your nose and jump” line came from Public Knowledge, when they opined that Fox’s blocking of online access to their programs on Cablevision’s broadband connection was one of the “the grossest violations of the open Internet committed by a U.S. company.”

Now that’s quite a statement, and there’s an excellent analysis of the entire dispute and the difficulty with PK’s logic by Larry Downes, here. PK, itself, in a letter to the FCC, explained how complicated the whole situation is. They did a good job. One that should make everyone pause before doing anything else about “net neutrality.” In short, however, what PK and others have done by suggesting that even the creator of intellectual property should not have the right to control its distribution once placed on the “open Internet” may well be the final straw in breaking the momentum for “net neutrality” regulation.

What, after all, do they want to regulate? This is something many of us have been asking for a long time. There has been little success in defining exactly what “net neutrality” really means. But now the true magnitude of that problem is coming into focus. The Fox/Cablevision fight, after all, is one where the ISP is not the “gatekeeper,” rather the program owner is defined by “net neutrality” lobbyists as the one who should potentially be regulated to prevent a “violation” of the “open Internet.”

To date no “net neutrality” regulatory proposal would do that. The entire debate has been about regulating “the last mile.” The ISP connecting to the end-user. Folks have taken great pains, including the FCC, to point out that the regulatory approaches being proposed, particularly the “Third Way” idea of a limited application of Title II authority, would only apply to the companies supplying the “transmission component” of Internet delivery. What most folks don’t realize is that the way the term “transmission component” is used, and its application to FCC authority, would even prevent the FCC from applying its rules in the Comcast/BitTorrent imbroglio since what Comcast did was not in the “transmission component.”

Everyone has been very careful to say that whatever these “net neutrality” regulations are (which “must” be adopted very quickly or we will see the destruction of the “open Internet”) they DO NOT apply to applications, or content suppliers such as Google or Facebook or Amazon, except now the lobbyists have stepped in the very deep puddle of suggesting that once popular video programming is on this magic “open Internet” it is forever protected. It is liberated. It is somehow immune even from the intentions of the creator of the programming. That’s quite a step, and it has to cause a lot of folks to reconsider what the heck this thing called “net neutrality” could morph into.

The FCC is totally gun-shy of getting involved in the retransmission consent dispute between Fox and Cablevision. Could you imagine them getting into disputes over the availability of some particular content on the Internet? They have, for years, been unwilling to even play a mediator’s role in these cable/broadcaster disputes where a company that has gotten the right to use the public airwaves decides to block access to those airwaves if the reception and delivery company a consumer chooses to use to watch the signals doesn’t pay the “free, over-the-air broadcaster” enough. That, in itself, is a remarkable situation. If ever there was a need for “net neutrality,” it would be in the distribution of the public airwaves. Once they are available for free, as is required under the exclusive, free rights they accepted to use those public airwaves, the broadcaster should not then be able to block the signals from folks who have every right to pick them up any way they want. But we’re not even at that point in regulatory and legislative thinking, and the “net neutrality” lobby wants to push a more confiscatory set of restrictions onto a medium that has no equivalent “public interest” obligations and is privately funded!

No wonder the promoters of “net neutrality” are gasping for air after falling into a huge logical hole that has finally exposed the true extent of their premise. From a legislative and regulatory point of view it seems to me the effort at massive extension of the “net neutrality” concept is going to force a major recalculation as to what can or can’t be done by government, and more importantly, what should or needs to be done given that the Internet is developing, both in content and adoption, better than just about any other segment of the economy.

Jumping into this very deep puddle may be the beginning of the end of the “net neutrality” debate as we have witnessed it over the past few years. It raises far too many questions that simply can’t be ignored by those being asked to write regulations or legislation. Several other things happened in the past week that reinforce that point, from studies showing the US is not really “behind” other countries in broadband use, to numbers proving that American ISPs are, in fact, delivering the speeds they say they do. It all adds up to a potential inflection point in the debate. It’s about time.

This article gives awesome perspective on the logical flaws that have run rampant in the rhetoric of Public Knowledge and Free Press throughout the course of the net neutrality debate. Mr. Effros artfully exposes the slippery slope that these so called public interest groups have tread for more than a year and a half now. What this article gives credence to, that I would have been unable to articulate before, is the suggestion by net neutrality supporters that the Internet owns the content distributed therein. PK’s response to the Fox/Cablevision dispute is clear evidence that net neutrality principles could never be very easily defined or enforced and it is clear evidence that net neutrality proponents are taking aim at whomever best serve their purposes for the day, regardless of the relation of those targets to actual net neutrality definitions.

# 1 November 2010 at 3:07 PM

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